Settle v. State, 20S00-8707-CR-653

• Decision Date: 12 August 1988
• Docket Number: No. 20S00-8707-CR-653,20S00-8707-CR-653
• Citation: 526 N.E.2d 974
• Parties: Jeffrey L. SETTLE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 974

526 N.E.2d 974

Jeffrey L. SETTLE, Appellant, v. STATE of Indiana, Appellee.

No. 20S00-8707-CR-653.

Supreme Court of Indiana.

Aug. 12, 1988.

Thomas A. Murto, Murto & Holbrook, Goshen, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in a conviction of appellant of Escape, a Class C felony, for which he received a sentence of eight (8) years, Criminal Deviate Conduct, a Class A felony, for which he received a sentence of fifty (50) years, and Child Molesting, a Class A felony, for which he received a sentence of fifty (50) years. The two fifty (50) year sentences were to run concurrently with one another and the eight (8) year sentence was to run consecutive to the fifty (50) year sentences.

The facts are: The mother of the 8-year-old victim in this case testified that on the morning of October 31, 1986, she left for work at approximately seven o'clock. Her daughter had been instructed that as soon as she awakened she was to go to a neighbor's house where she was to remain until her mother came home. The mother returned home about noon and found a doll she had not seen before. She located her daughter playing with some friends. Shortly thereafter the child left to spend the weekend with her father in South Bend.

Upon returning home Sunday, the child reported to her mother that she had been sexually molested the previous Friday morning. She reported that the molester had performed cunnilingus on her, had required her to perform fellatio on him, and had raped her. She told her mother that after appellant left he returned and brought her the doll which her mother had found on Friday.

On Monday morning, while driving in the neighborhood with her mother, she reported that a man standing on the sidewalk was her molester. Later, at the police station, the child was shown various photographs. She at first identified a photograph of a man other than appellant as that of her molester, but after further examination of photographs she identified appellant.

Police called appellant and asked him to come to the police station to discuss the subject. When he arrived at the police station, he was informed that he was under arrest for rape. He asked to call his lawyer, which he was permitted to do. Following a telephone conversation with the lawyer, as he started to accompany a police officer to another portion of the building, he suddenly jumped over a chair and started to flee. However, he was grabbed by another police officer who then lost his balance and grip on appellant. Appellant left the building and was pursued for a few blocks before being captured by the police.

Appellant claims the evidence is insufficient to support the elements of escape. He claims he was not in police custody at the time he left the building. He points out that the police had called him, and he had voluntarily come to the police station. He claims that because no policeman had hold of him and he was not in handcuffs or a cell, he could not be considered to be in custody. However, the testimony of the police officers was that he had been told that he was under arrest for rape.

Appellant's action in leaving the building would indicate that he believed himself to be in custody. He did not simply attempt to walk out the door but jumped over a chair and attempted to run. He physically broke loose from the police officer who grabbed him in an attempt to keep him from leaving. When he left the building he did not quietly walk away but ran until he was out of breath and could run no more.

There is clearly an abundance of evidence in this record to support the conviction of the escape under Ind.Code Sec. 35-44-3-5(a) and Ind.Code Sec. 35-41-1-18 which define "lawful detention." The testimony of the police officers clearly demonstrates that appellant was in fact in custody. Armstrong v. State (1982), Ind., 429 N.E.2d 647. See also Utley v. State (1972), 258 Ind. 443, 281 N.E.2d 888, where this Court fully discussed the term "custody" and distinguished between "actual custody" and "constructive custody."

Appellant claims the trial court erred in permitting evidence of his prior uncharged sexual acts. Appellant claims the prior acts did not meet the depraved sexual instinct exception to the prohibition against showing of prior criminal acts. However, appellant is mistaken in this regard. The State presented evidence to show that appellant had molested three children other than the victim in this case, ranging in age from 2 to 14 years, and that in each instance his molestation included cunnilingus on the children.

Ind.Code Sec. 35-41-1-9 defines deviate sexual conduct as an act involving "a sex organ of one person and the mouth or anus of another person...." Such evidence is admissible to show the depraved sexual instinct of the defendant in a case of child molesting. Brackens v. State (1985), Ind., 480 N.E.2d 536; Jarrett v. State (1984), Ind., 465 N.E.2d 1097. Appellant claims this evidence was inadmissible because there had been contact with the three children on prior occasions; he had no substantial prior contact, however, with the alleged victim in this case. He cites Penley v. State (1987), Ind., 506 N.E.2d 806, 809 n. 1 to support his contention. However, we do not interpret the court's language in this instance as supporting appellant. The footnote merely holds that evidence of "depraved sexual instinct" may be shown to demonstrate a common scheme to make a determination of guilt or innocence of the act charged. In the body of the opinion, the language under which the footnote appears merely states that the repeated commission of similar acts is not enough but that the acts must be so similar, unusual, and distinctive as to earmark them as acts of the accused. This was...